The Civil War And The Constitution: A Historical Perspective

The American Civil War was a conflict between the northern and the southern states of America, fought from 1861 to 1865. The war was primarily fought over the issue of slavery and states' rights, with the southern states, also known as the Confederate States, seeking to preserve and expand slavery. The Confederate States had their own constitution, which was based on the United States Constitution but with crucial differences, particularly regarding slavery. The Confederate Constitution included explicit protections for the right to own slaves and references to God, perpetual government, and state sovereignty. The outcome of the Civil War led to significant changes in the United States Constitution, including the adoption of the 13th, 14th, and 15th amendments, which ended slavery, guaranteed citizenship and equal protection under the law, and granted voting rights to African-American men, respectively.

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The Confederate Constitution

The Constitution of the Confederate States was the supreme law of the Confederate States of America. It superseded the Provisional Constitution of the Confederate States, the Confederate State's first constitution, in 1862. It remained in effect until the end of the American Civil War in 1865. The Confederate Constitution was approved on March 11, 1861, by delegates from the newly formed Confederate States of America.

Much of the Confederate Constitution was directly copied from the U.S. Constitution. However, there were some key differences in tone and legal content, particularly concerning slavery and states' rights. The Confederate Constitution, for example, banned any Confederate state from making slavery illegal and allowed slaveowners to travel between Confederate states with their slaves. It also accounted for enslaved people as three-fifths of a state's population and required that any new territory acquired by the nation allow slavery.

The 13th, 14th, and 15th Amendments

The 13th Amendment, proposed by Congress in 1864 and ratified by the states in 1865, abolished slavery and prohibited involuntary servitude, except as punishment for crimes. This amendment was a crucial step in ending slavery in the United States and was passed even before the Civil War had officially ended.

The 14th Amendment, proposed by Congress in 1866 and ratified in 1868, guaranteed birthright citizenship and ensured equal protection under the law. It established that all persons born or naturalized in the United States are citizens with specific rights, including life, liberty, and property, which could not be violated without due process. This amendment eliminated the three-fifths rule and punished states that did not permit male citizens over 21 years old to vote.

The 15th Amendment, passed by Congress and ratified by the states between 1865 and 1870, focused on voting rights. It prohibited discrimination in voting based on "race, color, or previous condition of servitude." This amendment was necessary to protect the voting rights of African Americans, who were facing violence and intimidation from white southerners and organizations like the Ku Klux Klan.

These three amendments were essential to reuniting the country during Reconstruction and addressing the issues that had led to the Civil War, particularly regarding slavery and the rights of African Americans. The Confederate Constitution, which had been based on the United States Constitution, had explicitly protected the right to own slaves, and the preservation of slavery was a significant motivation for secession. The Reconstruction Amendments ensured that slavery was abolished and that African Americans were granted citizenship, civil rights, and voting rights, although challenges to these rights, such as Black Codes and violence, persisted.

The Reconstruction Act of 1867

During the American Civil War (1861–1865), the Confederate States had their own constitution, which was based on the United States Constitution but with crucial differences, particularly regarding slavery. The Confederate Constitution included references to God, perpetual government, and the sovereignty and independence of each state. It also explicitly protected the right to own slaves.

Following the Civil War, the Reconstruction Act of 1867 was enacted to outline the terms for the readmission of the former Confederate states to representation and the Union. The act divided the former Confederate states, with the exception of Tennessee, into five military districts. Each state was required to draft a new constitution, which needed to include universal male suffrage and be approved by a majority of voters, including African Americans. Additionally, each state had to ratify the Fourteenth Amendment, which granted citizenship and equal rights to African Americans and former slaves. After meeting these criteria, the former Confederate states could gain full recognition and federal representation in Congress.

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The laws of war

During the American Civil War, the concept of the "law of war" was not widely understood. Some believed that there were no laws in warfare, and that "anything goes". However, in the context of the American Civil War, the idea of the law of war had several dimensions, including the challenges of maintaining a civil-military relationship within a constitutional system. There were also debates over whether any international responsibilities should limit an American nation engaged in armed conflict.

Abraham Lincoln, a 19th-century lawyer and politician, cared deeply about the law of nations and the law of war. He quoted from them in key public documents and invoked them as commander-in-chief. Lincoln considered himself and the American government to be bound by international legal doctrine. Lincoln also believed that the American people had demonstrated, through their victory in the American Revolution and Revolutionary War, that they could successfully establish and administer a republic.

However, Lincoln also believed that a question remained unanswered: Could the nation be maintained as a republic, with its government selected by the people's vote, given the ongoing internal attempts to destroy or separate from such a system? Lincoln's election provoked South Carolina's legislature to call a state convention to consider secession. On December 20, 1860, the convention voted unanimously to secede, citing states' rights for slave owners. Seven Southern slave states responded to Lincoln's victory by seceding from the United States and forming the Confederacy.

The Confederacy had its own Constitution, which was based on the United States Constitution. The Confederate Constitution included references to God, a perpetual government, and the sovereignty and independence of each state. The Confederate State Supreme Courts often used U.S. Supreme Court precedents in their interpretations of the Confederate Constitution. The laws of war played a significant role in the American Civil War, with Lincoln commissioning Francis Lieber, a Columbia University political scientist, to compile a series of orders for the Union army to direct their conduct toward belligerents and civilians under the highest standards of contemporary laws of war. Lieber's work, known as the Lieber Code, provided critical precedents for The Hague and Geneva conventions of war.

The Supreme Court's interpretation

The US Supreme Court's interpretation of the Constitution during the Civil War was influenced by several factors, including the conflict's impact on citizenship, slavery, state secession, and the balance of power between the president and Congress.

In the years leading up to the Civil War, the Supreme Court's rulings contributed to rising tensions. Notably, in Scott v. Sandford (1857), the Court denied citizenship to African Americans, and in Kentucky v. Dennison (1861), it asserted that the federal government lacked the power to prevent secession. These decisions reflected a limited understanding of federal authority and heightened sectional conflicts.

During the Civil War, the Supreme Court largely refrained from challenging President Abraham Lincoln's wartime measures. Lincoln, in his first inaugural address, emphasised his authority to interpret the Constitution, foreshadowing his interactions with the Court. The Court's early rulings, such as Ex parte Vallandigham (1863) and Ex parte Merryman (1861), demonstrated deference to Lincoln's actions, including the suspension of habeas corpus.

However, in the Prize Cases (1863), the Supreme Court supported Lincoln's assertion of the perpetual nature of the Union and his response to the Southern rebellion, indicating a shift in its interpretation of federal power. The Court's decisions during this period also addressed the relationship between the Constitution, citizenship, and the international laws of war.

After the Civil War, the Supreme Court continued to shape the country's constitutional order. In Ex parte Milligan (1866), the Court ruled on the rights of citizens during wartime, prohibiting the trial of citizens by military tribunals when civilian courts were operational. In Texas v. White (1869), the Court further solidified the Union's integrity by declaring that states could not secede from the United States, rendering secession ordinances "absolutely null."

While the Confederate States Supreme Court was never constituted, the supreme courts of individual Confederate states interpreted the Confederate Constitution, drawing on US Supreme Court precedents due to the similarities between the US and Confederate Constitutions.

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